EKSITH FERNANDO v. MANAWADU AND OTHERS (ST. THOMAS COLLEGE CASES)

009-SLLR-SLLR-2000-V-1-EKSITH-FERNANDO-v.-MANAWADU-AND-OTHERS-ST.-THOMAS-COLLEGE-CASES.pdf


EKSITH FERNANDO
MANAWADU AND OTHERS(ST. THOMAS' COLLEGE CASES)
SUPREME COURTDHEERARATNE. J.
WIJETUNGA. J, AND ISMAIL. J.
SC APPEAL NO. 55/99CA APPLICATION NO 842/97 (Rev)
DC COLOMBO NO 4974/SPLWITH
SC APPEAL NO 56/99CA APPLICATION NO 915/97 (Rev)
DC COLOMBO NO 4949/SPL ANDSC APPEAL NO 57/99CA APPLICATION NO 842/97 (Rev)
DC COLOMBO NO. 4974/SPL23rd AND 24lh NOVEMBER. 1999
Interpretation of statutes – “Generalia specialibus non deroganC -Qualifications for appointment to the post of Warden. St. Thomas' College- Applicability of Education Ordinance to STC – Ordinance No. 7 of 1930 -The right of plaintiff to sue-Section 5 of the Civil Procedure Code.
Two actions were filed in the District Court against St. Thomas' CollegeBoard of Governors and the Warden of STC seeking a declaration in eachthat the purported appointment of the 17lh defendant (Eksith Fernando)as warden was irregular on the ground that 17th defendant, although agraduate, has absolutely no teaching experience as required by regulationsmade by the Minister under the Education Ordinance which wasapplicable to the STC. The rules provided that only a graduate with atleast 10 years teaching experience was eligible to be appointed as thePrincipal of any school, which included a fee levying school as well.Admittedly the post of Warden is equivalent to that of a Principal. In eachcase, an interim injunction was prayed for preventing the 17th defendantfrom assuming duties as Warden.
The plaintiff in DC case No 4974 sued as the father of two studentsattending STC (parent's case) whilst the plaintiffs in DC Case No 4949sued as old boys (old boys’ case). The District Judge refused to issue the
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injunctions sought in each case. On applications made to the Court ofAppeal by way of revision which were consolidated, the Court of Appealset aside the order of the trial Judge made in the parent's case andordered the issue of an interim injunction as prayed for. As regards theold boys’ case, the Court of Appeal held that the plaintiffs had no causeof action to sue. Three appeals were preferred from the judgment of theCourt of Appeal. Of consent the appeals were consolidated and it wasagreed by Counsel that the court decides on the merits of the legal issuesinvolved.
Held :
The maxim "generalia specialibus non derogant" has no applicationto the instant case. The Education Ordinance is applicable to the STCand the appointment of the Warden should be in accordance with thequalifications specified in the regulations made by the Minister under theEducation Ordinance.
Per Dheeraratne, J.
“1 may mention here, in passing that in order to avoid needless delay andduplication of proceedings, situations like this should have ordinarlydemanded a trial judge, either taking up the main trial expeditiously ortaking up the interim injunction inquiry and the trial together. 1 aminclined to think that the burden of taking such a decision is with the trialJudge, but the Bar should actively co-operate with him, to reach thatdecision."
Per Dheeraratne, J.
“All what the (STC) Ordinance has sought to achieve was to grant acorporate personality to the STC Board, and to declare its powers andfunctions of internal management. No part of the functions or powerseither of the State or the Minister of Education has been conceded,conferred upon or granted to the Board by the STC Ordinance, to makethat a special enactment in the field of education."
The plaintiff in the parent’s case has a cause of action within themeaning of section 5 of the Civil Procedure Code, on the basis of contract.An implied condition of such contract is for the Board of Governors toprovide the plaintiffs two children with a Warden qualified in terms of the
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regulations made by the Minister. The failure to do so amounts not onlyto “the refusal to fulfil an obligations" but also to “the neglect to performa duty" within the meaning of section 5 of the Civil Procedure Code. Heis. therefore, entitled to succeed.
The relationship between the old boys and the Board of Governorswould not make the disputed appointment of the warden an infliction ofa “wrong” on them to ground a cause of action to sue the Board ofGovernors. Therefore, the old boys' case must necessarily fail.
Cases referred to :
Murugesuv. Northern Divisional Agricultural Producers Union (1952)54 NLR517
Richard Perera u. Albert Perera (1963) 67 NLR 445
Societe Des Produits Nestle SA u. Multitech Lanka (Pul) Ltd. (1999) 2Sri LR 298
The Vera Cruze (1884) 10 AC 59
Blackpool Corporation u. Slam Estate Company Ltd. (1922) 1 AC 27
Ghouse u. Ghouse (1988) 1 Sri LR 25
London and Blackwall Railway v. Limehouse D.B.W. (1856) 3KGJ 123
Thaiagarqjah v. Karthigesu (1966) 69 NLR 73
Amaris u. Amerasinghe (1919) 21 NLR 176
APPEAL from the judgement of the Court of Appeal
K. N. Choksy, P.C. with K. Wyetungafor the 17lh defendant – appellant in55/99 and 17th defendant – respondent in 56/99 and 57/99
D.S. Wyesinghe, P.C. with Roland Perera. for plaintiff – appellants in56/99
Faisz Musthapha. P.C. with N. Mahendran and Faiza Musthapha Markarfor plaintiff – respondent in 55/99 and 57/99.
H.L. de Silva P.C. with Romesh de Silva, P.C. and S.C. CrossetteThambiahfor lsl- 13th; 15lhand 16chdefendants-appellantsin57/99andlsl – 13th, 15lh and 16lh defendants – respondents in 55/99 and lsl – 13lhdefendants – respondents and 16lh and 17th respondents in 56/99.
Cur adu vult.
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JANUARY 21, 2000DHEERARATNE, J.
IntroductionI must frankly admit that the resolution of the legaldisputes in this case had the teasing nature of solving a cross-word puzzle, or rather a cryptic cross-word puzzle. In DC caseNo. 4974 the plaintiff as the father of two students attendingSt. Thomas College Mt. Lavinia (parent’s case), and in case No.DC 4949 the plaintiffs as old boys of STC (old boys' case), suedthe Board of Directors and the Warden of the STC, seeking adeclaration in each case, that the purported appointment ofthe 17th defendant – respondent as Warden, was irregular. Ineach case, an interim injunction was prayed for preventing the17th defendant – respondent from assuming office as Warden.Admittedly the 17th defendant – respondent, although agraduate, has absolutely no experience as a teacher. The basisof challenging the appointment of the 17th defendant -respondent as Warden in each case was that the EducationOrdinance No. 31 of 1939, was applicable to the STC; thatregulations made by the Minister of Education under thatOrdinance, provided that only a person with 10 years teachingexperience was eligible to be appointed as Principal of anyschool, which included a fee levying school as well. Admittedly,the post of Warden is equivalent to that of a Principal. Thelearned trial judge refused to issue an interim injunction in theparent’s case; thereafter he also refused to issue an interiminjunction in the old boys’ case. I may mention here, inpassing, that in order to avoid needless delay and duplicationof proceedings, situations like this should have ordinarilydemanded a trial judge, either taking up the main trialexpeditiously or taking up the interim injunction inquiry andtrial together. I am inclined to think that the burden of .takingsuch a decision is with the trial judge, but the Bar shouldactively co-operate with him, to reach that decision. See theobservations made in the cases of Mumgesu Vs. NorthernDivisional Agricultural Producers Union{li Richard Perera Vs.
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AlbertPerera{2i and Societe Des Produits Nestle SA Vs. MultitechLanka (Pvt) Ltd.™ The plaintiff in the parent's case and theplaintiffs in the old boys’ case moved the Court of Appeal inrevision on both the respective orders of the trial judge. TheCourt of Appeal, having consolidated both cases, set aside theorder of the trial judge made in the parent’s case and madeorder issuing an interim injunction as prayed for. As regardsthe old boys’ case, the Court of Appeal held that the plaintiffshad no cause of action to sue. From the judgment of the Courtof Appeal 3 appeals have been now preferred. In appeal No.55/99, the 17m defendant in the parent’s case, in appeal No.56/99, the plaintiffs in the old boys’ case, and in appeal No.57/99, the defendant Board of Governors of the STC in theparent’s case, are the respective appellants.
When the three appeals came up for hearing before us. inorder to secure the speedy and final resolution of all mattersin dispute pending between the parties, we suggested thefollowing course of action, which, in the best traditions of theBar, was met with the ready agreement and approval of learnedcounsel for appellants and respondents in all the three appeals;that was;-
Parties agreed to consolidate the appeals SC 55/99, 56/99and 57/99.
Parties agreed that if the Education Ordinance No. 31 of1939 and the regulations made thereunder are applicableto the STC, the appointment of the 17th defendant asWarden was invalid.
Parties agreed that this Court should decide the followingquestions only, in order to finally determine the DistrictCourt cases No. 4947 and No. 4949; namely, (A) Whetherthe plaintiff in DC No. 4947 and the plaintiffs in DC No.4949, had a right to sue to obtain a declaration thatthe appointment of the 17th defendant was invalid?; (B) Ifany one of the parties to either action had a right to sue,
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did the Education Ordinance and the rules made there-under govern the appointment of the 17th defendant asWarden?
Parties agreed that final judgments will be entered in theaforesaid District Court actions in terms of the judgmentthat will be delivered by this Court.
We realized during the course of arguments of learnedcounsel, that the two intricate and interesting questions of lawwe have been called upon to answer, were so much inextricablyinterwoven with each other, that in deciding them, we wereleft with two alternative approaches. The first, was to deal withthe right of the parties to sue, on the assumption that theEducation Ordinance was applicable to the STC and thendecide the question of applicability of that Ordinance; thesecond, was to deal initially with the question of applicabilityof that Ordinance to the STC and then decide the question ofthe right of parties to sue. We chose the latter option as itseemed to us to appeal better both to logic and reason. Indeciding those questions of law, we have specifically disregardedthe several items of evidence in this case, pointing to the factthat the Board of Governors of the STC, had for a long courseof time, acted on the basis that the Education Ordinance wasapplicable to the STC; for example obtaining permission fromthe Minister of Education to enable the then Warden tocontinue in office, when the regulations made by the Minister,which will be referred to in full later, came into force. In ourview, such conduct on the part of the Board of Governors, isirrelevant to the decision of the legal issue of the applicabilityof the Education Ordinance.
THE ST. THOMAS’ COLLEGE ORDINANCE NO. 7 OF 1930.RULES MADE THEREUNDER AND THE EDUCATIONORDINANCE NO. 31 OF 1939, AND REGULATIONS MADETHEREUNDER.
As the years of enactment of the two statutes indicate, theSTC Ordinance is anterior to the Education Ordinance.According to the long title of the STC Ordinance, it is an
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enactment to “incorporate St. Thomas’ College Board ofGovernors and to amend the Law relating to St. Thomas'College”. Section 2 of the Ordinance, deals with theincorporation of the Board of Governors as a corporation soleand section lOdealswiththe power of the Board to make rules.Rule 11 made in terms of that section reads as follows
“The Warden and Sub-Warden of St. Thomas’ College. Mt.Lavinia, and the Headmasters of Branch Schools shall beappointed by the Board subject to the approval of the Bishop,and shall have other academic qualifications as may beapproved by the Board. They shall be members of the Churchof Ceylon or of any Church in communion with the same,unless, in any particular instance, the Board with theapproval of the Bishop shall determine otherwise."
The long title of the Education Ordinance states "AnOrdinance to make better provision for education and to reviseand consolidate the law relating thereto .” Section 61 refers tothe applicability of Ordinance and reads “The provisions ofthis Ordinance shall not apply to any institution, devotedmainly or entirely to the education in agriculture of personswho are not less than sixteen years of age”. Section 62 definesan “unaided” school to mean “a school which is not aGovernment school or an assisted school". Section 49 providesthat on or after 1st June 1951, no person shall maintain anyunaided school, unless the principal or other person for thetime being in control of the school, has notified to the Director-General (DG) in writing, all such particulars relating to theschool, as the DG may, by notice published in the Gazette,require to be furnished to him, in respect of the unaidedschool. Section 50 enables the DG, or any inspecting officer ofthe department, or any other person generally or speciallyauthorized by the DG, to enter and inspect and examine thepupils therein and all the registers of admission and attendanceof any such school. Section 51 empowers the DG, on beingsatisfied after an inspection of an unaided school, that it isopen to the type of complaints mentioned in that section, to
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order measures to be taken to remedy the matters ofcomplaint within a specified time, and if no such remedialmeasures are taken, to order discontinuance of such school.Section 37 enables the Minister to make regulations for or inrespect of several matters, one being (n) “the qualifications,period of training, salaries, appointment, registration, grading,suspension, and removal of teachers.” It was not seriouslycontended that the word “teacher” in that context did notinclude a “Principal”. By a notification in the GovernmentGazette of9.12.1983, regulations made by the Minister on 29lhMay 1983 were published. I shall set out that notification infull.
THE EDUCATION ORDINANCEREGULATIONS made by the Minister of Education undersection 37 of the Education Ordinance (Chapter 185)
RANIL WICKRAMASINGHE
Minister oJExiucation
Colombo, May 24, 1983.
Regulations
These regulations may be cited as the Assisted Schoolsand Unaided Schools Regulations, 1983.
All assisted schools and unaided schools shall conform tothe following requirements in regard to the qualifications,appointment and period of training of their teachers
All teachers appointed henceforth should have atleast one of the following qualifications
University degree;
Trained Teachers Certificate;
Diploma Certificate in Music, Dancing, Art,Agriculture, Home Science, Technical subjectsand any other subject notified from time to time;
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Passes in three subjects at the General Certificateof Education (Advance Level) Examination.
Those in category (d) should obtain the TrainedTeachers Certificate within ten years of joining theservice.
A principal should be a University Graduate with atleast ten years of teaching experience.
A person who has been convicted in a Court of Lawfor a criminal offence or has been dismissed from anypost in the public service shall not be eligible for suchappointment.
Teachers who do not conform to the conditions stipulatedin regulation 2, but who are already in service are requiredto obtain the approval of the Minister to continue inservice. It shall be obligatory on the part of the managerto make the requisite application to the Minister.
Consideration of submissions made on behalf of theWarden and the Board of Management of the STC.It was forcefully contended by learned President's Counselappearing on behalf of the Warden and the Board of Managementof the STC, that the STC Ordinance was enacted prior to theEducation Ordinance; that the STC Ordinance is a specialenactment; that it is a self-contained Ordinance meantexclusively for the STC, while the Education Ordinance is ageneral enactment applicable to all schools except to thosewhich have a statute specifically enacted for them; that Rule11 made by the Board of Management has not been specificallyrepealed or rendered inoperative by the legislature by thepassage of the Educational Ordinance : that there cannot bean implied repeal, that if that has occurred the Board wouldbe defunct in respect of all its statutory powers and evencease to exist as a corporate body; and that the maxim“generalia specialibus non derogant” must be applied andtherefore the Education Ordinance does not apply to the STCand its Board.
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Among several decided authorities, three principal caseswere referred to in the course of the arguments by learnedPresident’ Counsel for the Warden and the Board of Governors,to which I shall instantly refer. In my view it is important toconsider closely the nature and effect of the enactments dealtwith in those cases. The first of those, was the case of The VeraCruz&4} in which Earl of Selbome LC said, “Now if anything becertain it is this, that where there are words in a later Actcapable of reasonable and sensible application withoutextending them to subjects specially dealt with by earlierlegislation, you are not to hold that the earlier and speciallegislation indirectly repealed, altered, or derogated frommerely by force of such general words, without any indicationof a particular intention to do so”. The special Act referred toin that case was the Fatal Accidents Act (Lord Campbell's Act)of 1846 which dealt with ‘damages for loss of life’; and thegeneral Act referred to was the Admiralty Court Act of 1861,which gave jurisdiction to the Admiralty Court, by using thegeneral words relating to actions as “over any claim fordamages done by any ship”. The second, was the case ofBlackpool Corporation Vs. Slam Estate Company Ltd.'5* in
which Viscount Haldane observed ” in
that state of matters we are bound , in construing the generallanguage of the 1919, to apply a rule of construction which hasbeen repeatedly laid down and is firmly established. It is thatwherever Parliament in an earlier statute has directed itsattention to an individual case and has made provision for itunambiguously, there arises a presumption that if in asubsequent statute the Legislature lays down a generalprinciple, that general principle in not to be taken as meant torip up what the Legislature had before provided for individually,unless the intention to do so is specially declared. A meregeneral rule is not enough, even though by its terms it is statedso widely that it would, taken by itself, cover special cases ofthe kind I have referred to. An intention to deal with them may,of course, be manifested, but the presumption is that languagewhich in its character only general refers to subject-matterappropriate to class as distinguished from individual treatment.
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Individual rights arising out of individual treatment arepresumed not to have been intended to be interfered withunless the contrary is clearly manifested." The individual Actreferred to in that case, was the private (as opposed to publicand general) enactment, the Blackpool Improvement Act of1917, and the general enactment referred to was the Acquisitionof Land (Assessment of Compensation) Act of 1919: and thedispute which arose in that case related to the question as towhich Act was applicable for the assessment of compensationfor the land acquired. The third, was a judgment of this Courtin Ghonse Vs. GhousS01 in which, on the application of themaxim "generalia specialibus non derogant", it was held thatthe Muslim Intestate Succession Ordinance No. 10 of 1931,being a special law applicable to Muslims, prevailed over theprovisions of the general law, the Adoption Ordinance No. 24of 1941, as far as a Muslim was concerned. The otherillustrations submitted by learned counsel to demonstratethat the STC Ordinance was a special enactment, were thoseprivate, local and personal enactments passed by the Parliamentin the UK, permitting corporations to do various acts,which they were unable to perform under the common law,for example, to acquire land, to impose rates or taxes oninhabitants of an area, in constructing public projects likerailways, canals or harbours and for the supply of gas,electricity or water.
In connection with the proliferation of those private Actsin the UK at one time, granting special powers to variousbodies and boards, not enjoyed by them under the commonlaw, I would refer to a few illuminating lines from a reviewwritten by Sir Cecil T. Carr KC. on the book (in two volumes)authored by Dr. O. Cyprian Williams, titled The HistoricalDevelopment of Private Bill Procedure and Standing Orders inthe House of Commons.” Sir Cecil wrote
"According to a hoary academic legend, variously retoldand never yet verified, the head of an Oxford College, in the faroff days when such appointments were subject to the condition
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of celibacy, astonished the fellows of his society by announcinghis marriage and confronting them with a clause in the localCanal Act which gave him statutory sanction.
It could have happened. In the canal mania of theseventeen-nineties, comparable with the railway mania of theeighteen-forties, over a hundred Canal Acts were passed.Toulmin Smith, who disliked all local legislation, complainedin particular of the spate of private Inclosure Acts becausenobody knew what might be hidden in them. In his “Governmentby Commissions”, published just hundred years ago, heemphasised the danger of obnoxious enactments being“smuggled through Parliament by a few projectors unknown tothe mass of inhabitants, as now often happens”. There aresome 4,000 Inclosure Acts in the century preceding thegeneral statute of 1845, another 4,000 Railway Acts between1830 and 1887, and some 1,500 Turnpike Acts in the half-century before 1809. Other impressive ranges of statisticscould indicate that we owe to private bill legislation not onlyour system of communication but also our supply of water, gasand electricity and many other social improvements andamenities.” (The LawQuarterly ReviewVol 66; 1950 page 216)
As stated by Wood VC in London and Blackwall RailwayVs. Limehouse D.B. W.m (Quoted by Craies and by Bindra) "Thelegislature in passing a special Act, has entirely in itsconsideration some special power which is to be delegatedfor the body applying for the Act on public grounds. Whena general Act is subsequently passed, it seems to be anecessary inference that the legislature does not intend therebyto regulate all cases not specially brought before it, but lookingto the general advantage of the community, without referenceto particular cases, it gives large and general powers which intheir generality might, except for this very wholesome rule ofinterpreting statutes, override the powers which, uponconsideration of the particular case, the legislature hadbefore conferred by the special Act for the benefit of thepublic. The result of a contrary rule of construction would be
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that the legislature, having authorised by special Acts theconstruction of some public work, would be supposedafterwards by a general Act to throw it into the power of a fewpersons to prevent that public work from being carried out."(Emphasis added)
The reason for this rule of construction is that in passinga special Act, the Parliament devotes its entire considerationto the particular subject; and when a general Act is subsequentlypassed, it is presumed that the Parliament has not repealed ormodified the former special Act, unless it appears that thespecial Act again received consideration from the Parliament.
What is the real nature and effect of the STC Ordinance?As the long title of the Ordinance indicates the legislativepurpose of the enactment is to incorporate the STC Board ofGovernors and the law relating to the STC. All what theOrdinance has sought to achieve was to grant a corporatepersonality to the STC Board, and to declare its functions andpowers of internal management. No part of the functions orpowers either of the State or of the Minister of Education hasbeen conceded, conferred upon or granted to the Board of theSTC by the Ordinance, to make that a special enactment in thefield of education. The Board has been granted a legalpersonality, but it has not been granted any monopoly,immunity or special privilege not granted to other personseither natural or legal. The Board has not been granted somespecial authority to perform any act which it had no authorityto perform under the normal law of the land. It could have runthe management of the STC even without the Ordinance nothaving been passed, but of course, devoid of its corporatepersonality.
Although it is unnecessary to provide for in an enactmentof the nature of the STC Ordinance, through an abundance ofcaution, section 13 has been put in, to make it quite certainthat rights of others remain unaffected by the passage of thatOrdinance. That section reads, “Nothing in this Ordinance
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contained shall prejudice or affect the rights of the Republic orof any body politic or corporate, or of any other person, exceptsuch as are mentioned in the Ordinance and those claimingby, from, or under them”. The rule making power granted tothe Board under section 10, enables the Board to make rulesinter alia “(d) for the employment, appointment and dismissalof the warden, the sub warden and other members of the staffof the college and the orphanage”. The rule making power andthe rules made thereunder, are nothing but privatearrangements and comprise no part of a general scheme oflegislation; they are meant for the protection of private interests.As Salmon says, 'The great bulk of enacted law is promulgatedby the State in its own person. But in exceptional cases it hasbeen found possible and expedient to entrust this power toprivate hands. The law gives to certain groups of privateindividuals limited legislative authority touching mattersconcerning themselves. A railway company, for example, isable to make by-laws for the regulation of its undertaking. Auniversity may make statutes binding upon its members. Aregistered company may alter those articles of association bywhich its constitution and management are determined.Legislation thus effected by private persons, and the law socreated, may be distinguished as 'autonomic'” (10th Edition -Glanville Williams 161)
The rule making power granted to the Board of the STCunder section 10, should be read subject to the overridingauthority of the Minister to make regulations, in terms of thepower granted to him by the Education Ordinance, in respectof unaided schools, inasmuch as the terms of employment,appointment and dismissal by the Board of its employeesunder that section, should be read subject to the normal lawof the land, such as the Employees’ Provident Fund Act, theShop and Office Employees Act, and the Industrial DisputesAct etc. The maxim “generalia specialibus non derogant” hasno application in the instant case. For the above reasons 1 holdthat the Education Ordinance is applicable to the STC and the
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appointment of the Warden should be in accordance with thequalifications specified in the regulations made by the Ministerunder the Education Ordinance.
The right of plaintiffs to sue.As stated earlier, in the parent’s case and the old boys’case substantial final reliefs claimed are the same, namely fora declaration that the 17th defendant is not entitled to beappointed to the post of Warden of the STC and for a declarationthat the appointment of the 17th defendant as Warden isinvalid and/or of no force in law. (Prayer to the plaint in theparent’s case – (a) and (b); in the old boys’ case – (a) to (d). Inthe parent’s case the plaintiff pleaded inter alia, that he is thefather of two students attending the STC; that he is concernedwith their welfare and education; and that the appointment ofthe 17th defendant, who is disqualified in terms of the Rules ofthe Education Ordinance, is prejudicial to the school and itsstudents. In the old boys’case, the plaintiffs pleaded inter alia,that they have been elected and are members of the ExecutiveCommittee of the Old Boys’ Association (OBA); that it wasdecided at a meeting of the Executive Committee of the OBAand the decision was conveyed to the Board of Governors,objecting to the appointment of the 17th defendant as Warden,since he is disqualified in terms of the Rules made under theEducation Ordinance; and that they have an abiding interestin the STC as Executive Committee members of the OBA. Itwas further pointed out that according to Rule No. 2 of the OBARules of Association, one of the objects was to makerecommendations for the better management andadministration of the STC; therefore it was contended, that theplaintiffs in the old boys’ case were interested in getting acompetent and a qualified Warden appointed. It was alsosubmitted that the STC Rule No. 1(3) provides, that tworepresentatives from amongst the old boys of the STC Mt.Lavinia, should be elected as ex officio members of the Boardof Governors. Therefore it was contended that they are notmere strangers or busy – bodies. It was also contended that.
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they as old boys, have a right to get their children admitted tothe STC in the future. On those facts, it was submitted thatthey are entitled to the declaratory relief as prayed for as theyhave a right to sue, firstly, because they are persons having“sufficient or real interest”; secondly because they have a‘contingent right’ to have their children admitted to the STC inthe future.
It is important to remember in considering the nature ofthe two actions, that we are not concerned with any public lawlitigation, but with litigation to vindicate private rights. Thebasic question to be asked, in the first place, in relation to bothcases, to my mind is, whether there exists a cause of action tosue, within the meaning of the Code of Civil Procedure (CPC),in each case. This is so, even in a case where declaratory reliefis sought from an original Court. But before I deal with thataspect of the matter, let me first examine, what a cause ofaction is within the meaning of section 5 of the CPC.
Section 5 reads “Cause of action is a wrong for theprevention or redress of which an action may be brought, andincludes the denial of a right, the refusal to fulfil an obligation,the neglect to perform a duty, and the infliction of an affirmativeinjury."
It could be seen that the definition primarily speaks of theexistence of a ‘wrong’; that is a generic term which embracesa variety of specific categories of wrongs. The definition thenseeks to signify some of the specific categories of wrongs thatmay be included in that generic term, like the denial of a right,the refusal to fulfil an obligation etc. It is quite obvious that thedefinition deals with what is usually referred to as a civil wrongor a legal wrong, which as Salmon puts it is “a violation ofjustice according to law." A wrong cannot exist independentof a violation (or a threatened violation) of law.
The tenor of the submissions of both President’s Counselin the parent’s case and the old boys’ case, was that declaratoryrelief could be sought from an original civil court, independent
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of the existence of a wrong, falling within the definition of acause of action. There was always no doubt about thecompetency of a civil court to grant declaratory relief in respectof matters not contemplated in section 217 (G) of the CPC,provided there was cause of action within the meaning of theCPC. The declaratory decrees section 217 (G) of the CPC referto, are those that “declare a right or status"; not meredeclarations of any sort. The declaratory relief claimed by theplaintiff in the leading case of Thaiagarajah Vs. Karthigesu,SIwas a declaration of his civil status that he was not married,which status was denied by the defendant in that case. H.N.G.Fernando SPJ. (as he then was) delivering the judgmentobserved
“Counsel has argued that under our Code a person cannotinstitute an action unless he is able to plead that he has acause of action as defined in section 5 of the Code. A similarargument was considered in Aziz Vs. Thondaman (1959) 61NLR 217, where the court apparently took the view thatbecause section 217 (G) of the Code declares that a decree may‘declare a right or status’, a person may therefore bring anaction to have a right or status declared. The precise objection,based on the definition of ‘cause of action’ was (1 think withrespect) not clearly formulated in thatjudgment. The objectionis that the definition does expressly include the denial of aright, but makes no reference to the denial of a status, andthat therefore the denial of a status does not give rise to anactionable cause. The answer to this objection is that thedefinition and the provision of section 217 (G) must be readtogether, and construed as far as reasonable so as to renderboth provisions effective. Inconsistency is avoided by theconstruction that, in the definition, ‘denial of a right' includesthe denial of a status. To deny a status can involve the denialof the legal rights flowing from such status. To deny theplaintiffs status of bachelor was to deny his rights and hiscapacity to contract a valid marriage. A cause of action cantherefore arise upon that denial. Any other construction
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would render the provision for a decree or order declaring astatus a dead letter, and would offend the principle ofconstruction ut magis valeat quam per eat"
What then is the legal nexus between the plaintiff in theparent’s case and the plaintiffs in the old boys’ case on the oneside and the Board of Governors on the other, which gives riseto a ‘wrong’ on which an action could be grounded? The ’wrong’in each case must be considered separately as the ‘wrong’ inone, does not become the ’wrong’ in the other. Again the factthat there is no ‘wrong’ in one case, does not mean that thereis no ’wrong’ in the other. That leads me to examine the natureof the legal relationship between the opposing parties in thetwo cases.
In my view, the legal relationship between the parent andthe Board of Governors, is one of contract. It is an impliedcontract to educate his children. An implied term of thatcontract, is the obligation on the part of the Board of Governors,to conform to the regulations made by the Minister, in relationto the qualifications of the Warden, designed for the purposeof providing better education. Let me refer to the legal principleinvolved.
According to Dr. C. G. Weeramantry’s Law of ContractsVolume 1 page 102, "Contracts may be either express orimplied. Express contracts are formed by the express wordsor the parties, whether oral or written. Implied contracts,however, are inferred by the law from the conduct of parties.Both types of contracts will thus be seen to proceed from theconsent of parties, though the manner of expression of suchconsent differs.
The only difference between the two types of contractbeing that the intention is expressed by words in the one caseand by the conduct in the other, the main practical resultflowing from the distinction would probably centre around thenature of the evidence to be led in proof of the contract and itsterms.
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Implied contracts would arise when for example a patientconsults a doctor, or a pedestrian hails a taxi-cab or acustomer sits down to a meal at a restaurant. In all these casesthe law infers a contract from the conduct of parties.
Particular terms forming part of a contract may be expressor implied. Thus, a number of implied conditions are importedinto a contract of sale by the Sale of Goods Ordinance, while,on occasion, the Courts will by implication read into a contractterms which are not there in order to give the contract businessefficacy.”
I am of the view that the plaintiff in the parent's case, hasnot one but two contracts with the Board of Governors, for theeducation of his two children. One of the implied conditionsof these contracts as mandated by the Education Regulationsmade by the Minister, is for the Board of Governors to providethe plaintiffs two children with a qualified Warden with aminimum of ten years experience as a teacher. The failure onthe pari of the Board, to provide the plaintiffs children withsuch a Warden, in breach of that implied condition, amountsto not only the refusal to fulfil an obligation', but also theneglect to perform a duty’ within the meaning of section 5 of theCPC. Those are the wrongs, for the prevention or redress ofwhich, a cause of action accrued to the plaintiff in the parent’scase, to sue the Board of Governors.
I am fortified in the view 1 have taken, by the judgment inthe case of ArrtarisVs. A mercis inghe191. The plaintiff in that casealleging that the defendant who was a head teacher in an aidedschool, refused to grant leaving certificates to his sons, broughtan action to compel the defendant to grant such certificatesand to recover damages. There was a Code issued by theDepartment of Education, which contained a rule that ateacher must furnish a certificate in the prescribed form toevery pupil who leaves the school. In that case De Sampayo J.observed
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Eksith Fernando v. Manawadu and Others
(St Thomas’ College Cases) (Dheemratne, J.)
97
“The Code, however, contains practically similar provisionsin the case of English schools, and I need only concern myselfwith the question as to what bearing the rules have on theobligations of the teacher towards the parents of the pupils.The Commissioner (of Requests) considered that anyinfringement of them was only a matter for the Department ofEducation, and would not form the subject of an action. I amnot able to take the same view. It is true, that the rules inquestion are primarily intended to serve the purposes of theDepartment, and the Government grant may depend on theirregular observance. But they may also affect the relationbetween the parent and the teacher. That relation is, of course,referable to a contract. But the terms of the contract may beexpressed or implied. I should say that the grant of a leavingcertificate, such as the Code provides, would in ordinarycircumstances be an implied term of the contract. Thewithholding of a certificate would prevent the pupil fromentering another and perhaps, better school, and consequentlyfrom making further educational progress. The grant of acertificate is, therefore, an important matter in the point ofview of the parent, and, in the absence of agreement to thecontrary, should naturally be presumed to be part of Iriscontract with the teacher. There was in this case no expressagreement relating to the certificate, and I think it is onlyreasonable to hold that the grant of a certificate was impliedlyincluded in the contract between the plaintiff and thedefendant.”
Similar to the view taken by the Commissioner of Requestsin Amaris’ case (supra), learned President's Counsel for theWarden and the Board of the STC, submitted that the breachof any Education Regulations, if any, is a matter solely for theDepartment of Education. I am unable to subscribe to thatview. In the instant case, the implied condition was one ofremarkable importance to any parent, concerned with givingthe best education to his children, and was one that wasstatutorily imposed upon the Board of Governors by the State.
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For the above reasons I hold that the plaintiff in the parent'scase has a cause of action to sue the Board of Governors; andthat he is entitled to succeed.
I am unable to discover any such relationship in lawbetween the plaintiff old boys and the Board of Governors, soas to make the disputed appointment of the Warden, aninfliction of a ‘wrong’ on them to ground a cause of action to suethe Board of Governors. No cause of action can be groundedeither on ‘a sufficient or real interest' or 'a contingent interest',without a legal nexus between the parties, giving rise to a‘wrong’. Therefore the old boys case must necessarily fail.
ConclusionSince 1 have come to positive findings on the two main legalissues, in terms of the agreement reached by the parties at thecommencement of the arguments, 1 direct the District Court,Colombo, to make order granting the declarations claimed inparagraphs (a) and (b) to the prayer of the plaint in action No.4974 (parent's case), without costs. I further direct the DistrictCourt, Colombo, to make order dismissing action No. 4949 (oldboys' case), without costs.
WIJETUNGA, J. – I agree.
ISMAIL, J.- I agree.
District Court directed to grant declarations claimed in actionNo. 4974 and to dismiss action No. 4949.